Wendy Kaminer too readily glosses over the rights of the parents who lost their case against the Lexington school authorities in early March when United States District Judge Mark L. Wolf dismissed their complaint seeking to exempt their elementary school children from a curriculum promoting tolerance of homosexuality in general and same-sex marriage in particular.
Judge Wolf was correct in dismissing the lawsuit on the ground that the program did not interfere with the parents’ freedom, under the First Amendment’s religious liberty clause, to supervise their children’s religious education. It may be true, as Judge Wolf observed, that the parents’ religion contains an injunction against gay sex and same-sex marriage, but since tolerance of gay sex and marriage is the official policy of Massachusetts such education must be seen as the kind of civic education that has been the province of schools throughout the ages. Wolf, a judge more literate than most, quoted Ralph Waldo Emerson’s journal: “I pay the school master, but ‘tis the school boys that educate my son.”
But there was another half of the case that Judge Wolf did not decide and that Kaminer ignores. He told the parents to take it to the state courts because it involved the interpretation of a state statute. That statute, while it does not give a parent a right to veto portions of the state-mandated curriculum promoting same-sex conduct and marriage or any other controversial social or civic topic, does take the step – even though not required to do so by the Constitution – of requiring that parents be given notice and an opportunity to exempt their children from any curriculum that “primarily involves human sexual education or human sexuality issues.”
That statute may very well have given the parents a right to keep their kids out of that particular class. In this case, however, the Lexington school authorities did not notify the parents, because they took the dubious position that giving young children books about gay family life (in one book, King and King, two royals of the same gender married, kissed in the accompanying illustration, and lived happily ever after). Judge Wolf decided that, while the First Amendment did not give the parents the right to keep their children out of that particular class, the state courts should decide whether the statute gave the parents the right to be notified in advance and to keep their kids home. The Lexington school authorities, remarkably, took the position that classes on gay family life do not involve “human sexual education or human sexuality issues” and that they therefore were not required to give parental notice and an opportunity to skip the class.
The school authorities’ disregard for the statute is, at the very least, a highly debatable proposition. Put the shoe on the other foot: If the Lexington School Committee were controlled by a “traditional family values” majority that insisted on a class very different from the “diversity education” currently taught in Lexington, wouldn’t pro-gay rights parents want advance notice and an opportunity either to keep their kids home or to explain to the kids that they were being exposed to attitudinal education (which some might call indoctrination or even thought reform) that conflicts with their upbringing?
It’s not quite the easy case that my friend Wendy Kaminer makes it seem. It we are truly interested in tolerance, we need to extend it even to those people we view as intolerant. That’s what life in a truly diverse society requires.